Wrong is Wrong: City Liable for Retaliation Based on Mistaken Assumption of Political Activity

First Amendment: A police officer does not lose first amendment rights when the police department retaliates because it wrongly believes the officer engaged in political activity.

Every citizen has the right to engage in politics and support the candidate of your choosing. It is part of our First Amendment, Constitutional rights.

With some limitations, governmental employees, including police officers, have the same right – and cannot be retaliated against for supporting a candidate for political office.

So if you work for the government, even if your boss is a big supporter of Candidate A, you are free to support and vote for Candidate B.

But what happens when you boss only thinks you are supporting the wrong candidate?

Recently, the Supreme Court held in Heffernan v. City of Paterson that a police officer’s right to engage in political activity does not go away simply because his supervisors were wrong about whether he was involved in a mayoral campaign.

Because it is wrong to fire a cop for supporting a particular candidate, it does not matter whether or not the cop actually does anything to support that candidate.

Jeffrey Heffernan was a well-respected 20-year police officer in Paterson, New Jersey. He  received a multitude of commendations throughout his career. In 2005, he was promoted to detective and assigned to an administrative detail in the office of Chief of Police.

Both the Chief of Police and Heffernan’s supervisor had been appointed to their positions by Mayor Jose Torres. And it was in their best interest to make sure that Torres was not voted out of office.

The year after Heffernan’s promotion, Lawrence Spagnola, who was one of his close friends and a former Chief of Police in Paterson, ran against Torres for Mayor. Although Heffernan wanted Spagnola to unseat Torres, he was not involved in the Spagnola campaign and he was not a vocal Spagnola supporter. In fact, because Heffernan lived in a different city, he could not even vote for Spagnola.

Heffernan’s mother, was a big fan of Spagnola and wanted to help him win. And so she wanted a second, large Spagnola campaign sign for her yard. Since she was bedridden, she asked her son to pick it up for her. As we all should do, Heffernan did as his mother asked.

As Heffernan later learned, another cop spotted him at the Spagnola distribution center. Word spread quickly, and the next day, one of Heffernan’s supervisors confronted him about it. Heffernan told them he was not working for the Spagnola campaign, he was just picking up a sign for his mom. But they did not care. “They said to me that ‘the mayor wants you out of the office; the mayor calls the shots, and you’re out,’ ” Heffernan says. Heffernan was immediately demoted to a “walking post” because of his “overt [ ] involvement in a political election.”

Heffernan filed suit, claiming that the City violated his first amendment rights. He argued that, even though they were wrong to believe that he was engaging in political activity, they still violated his first amendment rights. A jury agreed and awarded him $105,000 in damages.

The Court of Appeals took that verdict away. It found that an individual is protected from retaliation under the first amendment only if he or she actually engages in the political activity.

The Supreme Court disagreed. It held that the focus should be on the employer’s reason, not what the police officer actually did. When an employer demotes someone to prevent him from engaging in political activity, that violates the first amendment. And that is true even when the employer is wrong about the employee’s behavior.

Heffernan v. City of Patterson, 136 S.Ct. 1412 (April 26, 2016).